MILLBANK & MILLBANK
[2021] FamCA 80
FAMILY COURT OF AUSTRALIA
| MILLBANK & MILLBANK | [2021] FamCA 80 |
| FAMILY LAW – CHILDREN – equal shared or sole parental responsibility – family violence – sole parental responsibility ordered. |
| Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 64B(2), 65AA |
| Mayne & Tomlin [2020] FamCA 898 Re F: Litigants in Person Guidelines (2001) 27 Fam LR 517 Taylor v Taylor (1979) 143 CLR 1 |
| APPLICANT: | Mr Millbank |
| RESPONDENT: | Ms Millbank |
| INDEPENDENT CHILDREN’S LAWYER: | Maguire & Mcinerney Lawyers |
| FILE NUMBER: | WOC | 149 | of | 2016 |
| DATE DELIVERED: | 24 February 2021 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Wilson J |
| HEARING DATE: | 22, 23 & 24 February 2021 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Not applicable |
| SOLICITOR FOR THE APPLICANT: | Not applicable |
| COUNSEL FOR THE RESPONDENT: | Not applicable |
| SOLICITOR FOR THE RESPONDENT: | Not applicable |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Not applicable |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Maguire & Mcinerney Lawyers |
Orders
The mother have sole parental responsibility for the children X born … 2008 and Y born … 2010 (“the children”) in relation to the care, welfare, and development of a long-term nature involving the children including but not limited to the following –
(a) education;
(b) health;
(c) religion; and
(d) issue of passports.
The children live with the mother.
The children spend time with the father in accordance with their wishes and as agreed between the parents in writing.
Both the father and mother are to refrain from making critical or derogatory remarks about the other parent or members of his or her family in the presence or within the hearing of any of the children and that both parties are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either parent or members of his or her family in the presence or within the hearing of any of the children.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Millbank & Millbank has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: WOC 149 of 2016
| Mr Millbank |
Applicant
And
| Ms Millbank |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
Pursuant to the orders made by the Deputy Chief Justice on 11 December 2020 the trial of this proceeding was conducted on an undefended basis on 23 February 2021. On 5 November 2020 the applicant (the father) had filed a notice of discontinuance indicating that he no longer intended to participate in this litigation.
The independent children’s lawyer and the respondent (the mother) urged orders that in substance –
a)conferred sole parental responsibility on the mother for the two children;
b)permitted the father to have time with the children in accordance with the children’s wishes; and
c)provided for a non-denigration order.
For reasons developed below, the report of the family consultant dated 21 May 2020 was supportive of the orders sought.
Synopsis
The evidence in this case demonstrated to me that –
a)the primary consideration recorded in s 60CC(2) in respect of family violence was enlivened;
b)it was necessary for me to act protectively in fashioning orders in respect of the two children;
c)the evidence revealed a high likelihood that the applicant and respondent will be unable to effectively communicate or act cooperatively in undertaking the tasks associated with equal shared parental responsibility;
d)the father has had nothing to do with the children since July 2020;
e)the father has engaged in conduct in respect of the children indicative that he promotes his own wishes ahead of the best interests of the children; and
f)I entertain very real fear that the father will not act protectively towards the children to prevent the risk of their exposure to family violence.
Some details of the parents and the children
The father was born in 1981 and the mother in 1979. The eldest child was born in 2008 and the youngest in 2010.
The parties in this case separated on a final basis in 2015, they having earlier separated in 2013. The father has married a woman who has a son from an earlier relationship. That child was born in 2006 and so is a teenager who lives mainly with his mother (the father’s current wife) and the applicant in this case. The respondent mother in this litigation has not re-partnered. The teenage son of the applicant’s wife represents a risk to the children in this case according to the author of the family report.
The applicant father has disassociated himself from the children since July 2020.
The children in issue in this case attend school and appear to be progressing well. They live with their mother, the respondent.
The mother made two affidavits. In the first, made on 23 June 2016, she deposed to the following –
a)the applicant consumed alcohol daily, often rendering him unable to speak without slurring or walk without stumbling;
b)the eldest child told the mother more than once he was afraid of his father;
c)the father told the mother that in the view of the father the children should be seen but not heard;
d)the father required the mother to prioritise the father ahead of their children;
e)the father openly stated that he did not like the two children, declaring that he did not love the respondent or the children a week prior to the first separation;
f)in the period May to September 2013 the father changed visiting times for the children;
g)frequently the children needed to be forcibly returned from the car in which they were travelling in order to spend time with the father as they did not wish to do so;
h)the mother separated from the father on a permanent basis by reason of the father’s drinking, his anger problems and what the mother construed as the father’s third affair;
i)the children were not enthusiastic about visiting their father after their parents’ separation;
j)in April 2016 the mother applied for an AVO against the father;
k)the father has not participated in the children’s schooling events; and
l)the father spat in the mother’s face at a Christmas carols event, an incident that took place in front of the entire community.
In her affidavit made 2 November 2016 the mother deposed to other events, mostly in the period subsequent to separation. In no particular order of priority, they included the following –
a)on 31 July 2015 the father pushed the mother against a wall and behaved in a threatening manner towards her;
b)the children became upset and nervous when they were required to see their father.
c)the eldest child started resisting visiting the father from October 2015;
d)the eldest child refused to answer the father’s telephone calls;
e)the father disclosed to the children details of information given by the mother to the father in private;
f)the father dropped the children to the mother at times that best suited the father;
g)the father used language in front of the children, when referring to the mother, as “slut”, “fat whore” and “shit bag”;
h)in other contexts the father described the mother as being stupid;
i)the father described the children as being liars;
j)the younger son began wetting his trousers when the prospect of his spending time with his father arose;
k)the father frequently abused the mother by telephone in the earshot of the children;
l)the father frequently yelled at the children calling them bastards who could live in the gutter with their mother;
m)the father frequently took the youngest child to sporting events without consulting the mother causing the youngest child to suffer distress;
n)the father often telephoned the mother accusing her of defaming him, which the mother denied; and
o)the father attempted suicide.
During 2016 the father did not contact the children to wish them a happy birthday.
In the mother’s second affidavit she attested to several incidents during which the father accused the mother of occupying a lower social and intellectual status than he asserted he enjoyed.
The mother’s viva voce evidence
After explaining to the mother the import and effect of the Full Court’s decision in Re F: Litigants in Person Guidelines,[1] Ms Hewlett, the ICL, told me she took the view that it would be of assistance to invite the mother to provide up-to-date evidence on the issues of concern in this case, namely, sole parental responsibility for which the mother contended and the father’s time with the children. After being affirmed, the mother gave viva voce evidence to the following effect –
a)the parents are unable to parent cooperatively;
b)the father continues to behave towards the children in a manner that exhibits complete disregard for the wishes, views or input from the mother;
c)the father unilaterally enrolled the children in a new school without consulting the mother;
d)the father last saw the children in July 2020 and has exhibited no interest in their welfare since then;
e)it is simple enough for the father to reach the children by telephone yet he has made no attempt to do so since July 2020;
f)the children are fearful of their father;
g)the father’s new wife’s teenage son poses a risk to the children as he is violent towards them; and
h)the children are progressing well in the mother’s care while living with her.
[1] (2001) 27 Fam LR 517.
The family report
The ICL placed considerable reliance upon the report of the family consultant. Relevantly paraphrased, the family consultant reported as follows –
a)the children are doing well at school;
b)the eldest child told the family consultant that when the children had been in the care of the father and his new wife, the father and his new wife fought often or left the children in the care of the new wife’s teenage son;
c)the eldest reported that he considered it lonely at his father’s home;
d)the eldest told the family consultant that he really did not know his father;
e)the eldest told the family consultant that the father’s new wife’s teenage son often assaulted the children and they are fearful of him;
f)the father does not intervene, even though the teenage son punched the children resulting in their black eyes;
g)conversely, the eldest said that the mother is kind and warm towards the children;
h)the youngest child told the family consultant that the father calls the children fat, lazy, pathetic and liars;
i)the youngest child reported incidents during which the father’s new wife’s teenage son head butted the children in respect of which the father did not intervene;
j)the youngest child described the father as a really bad dad; and
k)the youngest told the family consultant that he is happy in the home of his mother.
The youngest child told the family consultant he wishes to spend no time with his father. The eldest child said the same thing.
The family consultant recognised the very significant barriers to effective co-parenting.
It must be acknowledged that the family consultant did not address the more recent information that the father had not made contact with the children in any form since July of last year.
Equal shared parental responsibility is not appropriate in this case
Pursuant to s 65AA of the Family Law Act, whenever the court is called upon to make a parenting order including an order under s 64B(2) concerning the allocation of parental responsibility, the paramount consideration is the best interests of the child as is stipulated in s 60CA The Family Law Act makes further provision for the matters a court must take into account in determining what is in the best interests of the child. They are divided into considerations the legislation calls “primary considerations” and those called “additional considerations”. The primary considerations are twofold. The first is the benefit to the child of having a meaningful relationship with both parents. The second, and the one which predominates over the first, is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
In Mayne & Tomlin[2] I examined in some little detail the way in which this court has interpreted the provisions of the Family Law Act, especially the terms “family violence”, “neglect”, “abuse”, “subjected to” and “exposed to”.
[2] [2020] FamCA 898.
In this case the evidence demonstrated that when in their father’s care, the children have been both subjected to and exposed to family violence. In particular –
a)the father calls them deeply wounding names such as fat, lazy, pathetic liars;
b)the teenage son of the father’s new wife has inflicted actual injury to the children by head butting and striking them causing one or more black eyes; and
c)the father fails to act protectively towards the children.
It must not be overlooked that for the purposes of s 4AB(1) of the Family Law Act, the notion of family violence is of very wide import. The examples set out in s 4AB(2) are also wide, reflecting a legislative intendment to capture as far as possible conduct or circumstances that coerces or controls a member of a person’s family or causes the family member to be fearful. The illustrations given by the family consultant represent “family violence” as defined.
Accordingly, in allocating parental responsibility in this case I have had careful regard to the injunction posed in s 60CC(2)(b), namely, the need to protect the child (here, the children) from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. In my view, it is antithetical to s 60CA to make an order for equal shared parental responsibility in this case. I say that for several reasons, namely –
a)since July last year, that is to say eight months ago, the father has expressed no interest in communicating with his sons or being involved in decision making of any description;
b)the father discontinued this litigation and he has failed to participate in it so as to provide his version of events;
c)the father appears to have proceeded with his life in the absence of his children who are the subject of this litigation;
d)the parents are unable or unwilling to parent cooperatively; and
e)the evidence reveals a deep commitment by the mother to provide a happy, safe home environment for her children.
In all, in my view an order should be made conferring sole parental responsibility for the children upon the mother. Before leaving s 60CC considerations, it will be recalled that s 60CC(3) imports an array of considerations described as “additional considerations”. Not all are relevant to the facts of this case. However, the views expressed by the children are relevant. So far as s 60CC(3)(a) was concerned each told the family consultant, in effect, that he does not wish the father involved. So far as s 60CC(3)(b) was concerned, the nature of the father’s relationship with the children is extremely poor. The father has failed to avail himself of opportunities to participate in communicating with, spending time with and making major long-term decisions in relation to the children for the purposes of s 60CC(3)(c).
Maintenance was not raised as an issue in this case.
So far as s 60CC(3)(d) was concerned, the likely effect upon the children from the separation from their father will only be positive. Section 60CC(3)(e) was not relevant nor was s 60CC(3)(f). Similarly, ss 60CC(3)(g) and (h) were not raised on the facts of this case. The attitude of the father to the responsibilities of parenthood under s 60CC(3)(i) was dismal. Conversely, the mother’s was encouraging. Family violence under s 60CC(3)(j) has already been addressed. It is difficult to anticipate whether further litigation will unfold for the purposes of s 60CC(3)(l). However, as this case was heard in the absence of the father, he may (possibly might) wish to be heard, relying on principles set out in the High Court’s decision in Taylor v Taylor.[3]
[3] (1979) 143 CLR 1.
So far as s 60CC(3)(m) was concerned, it is relevant in my view that the father showed no interest in participating in this litigation.
The precise order the ICL proposed in consultation with the mother concerning parental responsibility was wide. It was as follows –
1.That the Mother have sole parental responsibility for the children X born in 2008 and Y born in 2010 in relation to the care, welfare, and development of a long-term nature involving the children including but not limited to the following –
1.1 Education;
1.2 Health;
1.3 Religion; and
1.4 Issue of Passports.
The ICL proposed that the children live with the mother. That was no more than to adopt the regime that already prevails.
Time in accordance with the children’s wishes
Under s 64B(2) of the Family Law Act an order for a parent to spend time with a child is a “parenting order” to which the considerations of s 60CC apply. In the passages above I have examined the provisions of s 60CC and its various subsections. So that these reasons are kept within manageable confines, I shall not repeat in great detail the considerations exercising my mind in determining the most appropriate orders for the father’s time with the children, recognising that the making of these orders is determined by a consideration of the children’s best interests. Chief among them were the following –
a)each child told the family consultant, in effect, that he wishes no time with the father;
b)the father has failed to act protectively when the children are in his care to eliminate exposure to the family violence exhibited by the father’s new wife’s teenage son;
c)the father has expressed no interest in the children since last July;
d)the father is insulting towards the children calling them fat, lazy, pathetic liars; and
e)the father has not immersed himself in major long-term decision making for the children.
That list is not exhaustive.
The children’s past experience with their father, including their expressed wish that they do not wish to spend time with their father fortifies me in the decision to permit the children to indicate when and in what circumstances the father should have time with them. I make the order proposed by the ICL in which the mother agreed.
The final order related to restraining the parents from denigration of one another. To my mind that is a consideration to which s 60CC(3)(m) is applicable. I make it in the circumstances of this case in the form proposed.
Finally I record my thanks to Ms Hewlett for her helpful conduct of this case.
I pronounce orders as urged by the ICL.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 24 February 2021.
Associate:
Date: 25 February 2021
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